NEUMAN V. Liles

CHESHIRE — Carol Neumann and Tim Benton created Dancing Deer Mountain nine years ago as a venue for weddings and other special events.

The site, tucked in among towering firs and lush ferns, has a grass-carpeted amphitheater and an open-sided lodge that Neumann and Benton built from trees felled on site. Neumann herself has divided, propagated and tended the mostly native plants lining the site’s paths.

But things haven’t been tranquil the past year for the small business the couple had carefully cultivated to provide their retirement income.

Dancing Deer Mountain bookings took a nosedive about this time last year, thanks to what Neumann and Benton say is a malicious campaign of negative — and false — reviews on Internet wedding sites.

“DO NOT USE THIS VENUE!!!!” began one post. “Upon arriving at this venue it looks perfect! WRONG!!!!!!”

“Beware! The owners of this venue are not cut out to be in the wedding business!” warned another.

“These people are insane!” said a third. “The venue itself is beautiful! However, the owner … is absolutely crazy and in my opinion is in need of professional help.”

In a series of defamation lawsuits filed this year in Lane County Circuit Court, Neumann and Benton say the posts were retribution by members of the bridal party and guests from a June 2010 wedding. The five lawsuits allege that the comments were an effort to ruin Dancing Deer Mountain financially after Neumann repeatedly confronted guests for consuming their own alcohol at the venue, violating a rental agreement signed by the bride’s family.

That contract banned hard alcohol, but allowed an agreed-upon amount of beer and wine to be served by an Oregon Liquor Control Commission-licensed server. Guests began flouting the alcohol rules during a rehearsal the night before the ceremony, the suits allege, prompting Neumann and Benton to review the contract with the bride’s wedding coordinator and send a letter to the bride’s mother warning her not to violate the contract.

But the unapproved drinking continued the day of the ceremony, the complaints say. Some guests became combative when Neumann tried to halt it, and Benton confronted one man for exposing himself while publicly urinating, the suits charge. The evening ended with the pair struggling to get wedding guests to leave by sunset, as the contract stipulated, the suits allege.

Other Internet posts called Neumann “crooked” and said she and Benton “changed the rules as they saw fit” to find a way to keep the bride’s family’s $500 deposit, which the contract allowed them to do if its terms were violated.

The venue had previously hosted “really beautiful, lovely events,” Neumann said. “And one nightmarish experience in all these years might not seem so bad.”

But once the June 2010 party’s “revenge posts” hit the Web, Neumann said, bookings for 2011 weddings dried up. Faced with only a handful of weddings during their May through October season, Neumann and Benton resorted to discounting their rates. Neumann estimates that they lost $20,000 in revenue to the spate of negative postings.

Four of the couple’s lawsuits, filed last month, target unknown defendants. The suits identify the defendants only as Janice, Judy, Julie and June Doe, because their derogatory comments were posted anonymously as “wedding guest” or using screen names such as “Honeyplease” and “derm01.” Another suit was filed this spring against a named defendant, Christopher Liles, because he posted the allegations about the deposit using his own name.

But days after Eugene attorney Steve Baldwin filed the Doe lawsuits as a precursor to seeking the posters’ real identities from their Internet service providers, a Lane County Circuit Court judge threw out the suit against Liles.

Judge Charles Carlson granted an motion filed by Liles’ Portland attorney, Linda Williams, to dismiss the suit under Oregon’s “Anti-SLAPP” law. The judge has yet to rule on Liles’ request that Dancing Deer Mountain pay his legal costs in the case, as allowed under the Oregon law.

Oregon is one of 28 U.S. jurisdictions with laws against what are known as “Strategic Lawsuits Against Public Participation,” according to University of Oregon journalism and law professor Kyu Ho Youm.

The term “SLAPP suit” was coined by University of Denver professors in the 1980s to describe defamation suits — typically by deep-pocketed businesses — aimed at intimidating and silencing “normal, middle-class and blue-collar Americans” who may have testified against them at a zoning hearing or spoken out politically in some other way.

In 1989, Washington became the first state to pass an “Anti-SLAPP” law. It allowed defendants to file motions seeking swift dismissal at the outset of defamation suits if a judge determines that the suit aimed to deter or punish their statements to public officials in the course of government decision making.

Neumann was devastated — and her attorney disappointed — by Carlson’s application of it in the suit against Liles. “Anti-SLAPP suits were intended to keep big business from shutting up the little people,” Baldwin said. “Dancing Deer Mountain is a mom and pop business.”

Oregon journalism and law professor Kyu Ho Youm questioned, however, whether litigation is the best way to counter malicious Internet posts. Rather than trying to shut down their critic’s speech, business owners who feel they have been unfairly maligned could simply drown the negative comments with positive speech from satisfied customers, Youm said. “The beauty of the Internet is that they could neutralize it,” he said. Neumann and Benton tried that, Neumann said. They wrote to the websites that hosted the harmful comments, persuading them to remove the posts as unfair and untrue.

They hired a company, “Review Boost,” to survey and post positive comments from participants in other Dancing Deer Mountain weddings.

But the disgruntled folks the pair believe to be from the June 2010 wedding responded by posting new comments alleging that criticism of the venue was being censored — and posting their damaging remarks elsewhere. “That’s when we decided to take legal action,” Neumann said.

Though a judge has not yet ruled on the Doe cases, they are nearly identical to the Liles suit and thus may also be vulnerable to Williams’ successful argument to dismiss the Liles suit.

We conclude that the trial court erred when it struck Neumann’s defamation claim, and we reverse the judgment of dismissal for that reason. Because plain- tiffs have not separately addressed the trial court’s dis- missal of the other claims in their briefing on appeal, we do not reverse the court’s decision to strike those claims.9 We note, however, that those claims were dismissed with- out prejudice—as was required by ORS 31.150(1)—and that the trial court retains its authority on remand under ORCP 23 to entertain proposed amendments to the pleadings, as appropriate. ORCP 23; Allen v. Premo, 251 Or App 682, 685-87, 284 P3d 1199 (2012). Finally, because we have reversed the judgment in defendant’s favor, we also vacate the attorney fee award because it was predicated on the trial court’s determination that the special motion to strike should be granted as to all of plaintiffs’ claims. ORS 20.220(3). Thus, defendant’s cross-appeal, challenging the fee award, is moot.

CONCLUSION

For the foregoing reasons, the trial court erred by granting the special motion to strike Neumann’s defamation claim. We therefore reverse the trial court’s decision as to the defamation claim, vacate the attorney fee award, and remand for further proceedings consistent with this opinion.

“Online commenter critical of business can be sued for defamation, Oregon court says”

Aimee Green, OREGON LIVE

Thinking of posting a bad review about your latest dining experience, doctor you consulted or contractor you hired? Better think twice, if you don’t want to get sued.

That’s the de facto message the Oregon Court of Appeals sent Wednesday, when it breathed new life into a $7,500 defamation suit filed by the owner of an outdoor wedding venue northwest of Eugene. The case is among the first in Oregon to test the protections afforded to consumers who post their opinions on the Internet, including on such sites as Yelp, Google Reviews, Angie’s List, Facebook and Twitter.

Depending on your perspective, Wednesday’s ruling should be decried by anyone with a consumer gripe — or celebrated by leagues of business owners who agonize over what every negative review might do to their bottom lines.

The case at issue began in 2011, when Christopher Liles, two days after attending a friend’s wedding, posted a scathing critique of the venue on Google Reviews.

The California man, who was in Oregon for the wedding, titled his post “Disaster!!!!!” and described one of owners of the Dancing Deer Mountain wedding venue as “two faced” and “rude.” The “bridal suite,” he said, was a “tool shed that was painted pretty, but a tool shed all the same.” And Liles was irked that the owners, he said, shepherded out all guests 45 minutes early.

Owner Carol Neumann said business took a nosedive after Liles’ one-star critique, so she and her company filed suit. Her Eugene attorney, Steve Baldwin, argued that online commenters aren’t free to post false statements without repercussions and that Neumann was entitled to sue.

Liles’ attorney, however, argued that her client was simply expressing his opinion — with a whole lot of hyperbole (e.g. “The worst experience of my life!”) — which he was entitled to.

Lane County Circuit Court Judge Charles Carlson sided with Liles by throwing out the suit under a 2001 Oregon law designed to safeguard speech in public forums. It’s known as the state’s anti-Strategic Lawsuits Against Public Participation, or SLAPP, law.

A three-judge panel of the Oregon Court of Appeals, however, ruled Wednesday that Neumann should be allowed to proceed with her defamation claim because a “reasonable fact finder” could conclude that Liles posted not just his opinions but factual statements that Neumann might be able to prove are untrue.

Linda K. Williams, the Portland attorney representing Liles, said states and federal courts across the country are in various stages of determining which consumer gripes are protected and which go too far. In her research, she’s found 26 states with anti-SLAPP laws.

“It happens all of the time that businesses are outraged about a review,” Williams said. “Often times, they will sue for defamation just to shut up critics.” Williams said California’s law, which is about 20 years old, has been the most tested. And it repeatedly has protected online commenters from reviews similar to Liles’.

Williams successfully defended a man who complained online that a Pearl District dentist did shoddy work, warning future customers that if that dentist “tells you that you have a cavity — GET A SECOND OPINION.” The dentist in June 2012 sued for $300,000, but a Multnomah County judge tossed the case out.

In a case that attracted widespread attention, a jury in January failed to award any money to a Washington, D.C., home contractor who sued a homeowner for $750,000 after she posted scathing reviews on Yelp and Angie’s List about the quality of his work. She also accused him of stealing her jewelry.

But even so, new cases pop up frequently in Oregon and across the nation. “The law of defamation is trying to catch up with technology,” Williams said. Attorneys from both sides of Christopher Liles’ case agree, it’s one that will be watched in Oregon.

“There’s a lot of business people in the same boat as my clients,” said Baldwin, the wedding venue owner’s attorney.

Williams plans to ask the Court of Appeals to reconsider. And if it doesn’t, she’ll appeal the case to the Oregon Supreme Court.

An outdoor wedding venue in Oregon is suing a California resident over a terrible testimonial on Google Reviews. The presiding judge denied the defense’s motion to dismiss, deeming that statements of fact were made and that plaintiff has the right to move forward with the suit.

How This Online Review Defamation Suit Began

Our tale of online review defamation woe began in 2011. That year, friends of Christopher Liles got married at a venue called Dancing Deer Mountain. Apparently, good times were not had by Liles – and he blamed it on the establishment’s owner, Carol Neumann. “Disaster!!!!!” griped the unimpressed wedding guest. He also accused the owners of being “two faced” and “rude,” and quipped, “[the bridal suite was a] “tool shed that was painted pretty, but a tool shed all the same.”

According to Neumann, the venue suffered a severe reversal of fortune from the day the negative review hit the Internet. Instead of doing nothing, Neumann decided to file an online review defamation lawsuit.

At first, a lower court judge sided with the defendant and dismissed the case, citing anti-SLAPP statutes. But Neumann appealed – and low and behold, the Oregon Court of Appeals overturned the district court decision.

As for the defendant, his lawyer says his client is simply hyperbolic and was only expressing his strong opinion on Google Reviews.

An appeals judge, however, overturned the lower court’s decision. The judges ruled that the Josephs should be allowed to continue with case because the paper made factual statements that could be proven false.

Speak With An Online Review Defamation Lawyer

Are you entangled in a defamation situation? Are you interested in learning more about your legal options when it comes to online review defamation?

An Oregon man wanted to tell the world he had attended a wedding two days before at a place called Dancing Deer Mountain, and if you were looking for a location to get married, this was not the place. It had been a “disaster.” Christopher Liles wanted to express himself, as many folks do, by posting a negative review on the Internet. It may cost him.

Posting is so easy. You think you can say whatever you want on the Internet. Think again.

People reviewed negatively are fighting back, using the law: merchants, restaurants, contractors, physicians, yoga teachers and others — among them, Carol Neumann and her husband, the owners of Dancing Deer Mountain.

It sounds pleasant enough, like a scene from a Disney movie. But Liles wasn’t enchanted. Here’s his post:

[[ Disaster!!!!! Find a different wedding venue.

[[ There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [sic] to keep your $500 deposit, and will try to make you pay even more. ]]

Doesn’t Liles have a right to speak out? Well, as the first issue of this blog told you, “Not always.” Free expression is restricted by the government in many ways, despite what the First Amendment says. One of those ways is by passing laws giving a person harmed by claimed lies the right to go after your money in court.

And that’s what Carol Neumann did. She sued Liles for $7,500, claiming Dancing Deer’s business dropped off severely after the post. So far she has fought off Liles’ attempts to dismiss her case. Neumann and other witnesses say that some of Liles’ statements are false so it is headed for a trial.

But Neumann can’t be compensated for everything Liles said. Can you figure out which statements above are claims the Oregon court says she can sue on and which she can’t?

Don’t be ashamed if you can’t. Liles’ rant is a great example of court cases all over the country deciding whether a person’s statements are “opinion” or “factual statements.”
• If they are opinion, the law protects our right to express them. The law can’t punish you for opinions, evil or crazy as they might be.
• But if your statements are facts, you’re fair game for a person who says you’re lying and your lies hurt them.

You ask yourself, “How do I know an opinion when I read it?” As lawyers say, “It’s complicated.” The question keeps lawyers all over the country occupied for many hours a year. Don’t think you’ll find the definitive answer here. It depends on the facts and circumstances in a case, people don’t agree on the answer most of the time and, most importantly, any state or judge may come up with a different result from the state next door or another judge down the hall. And… it’s complicated. But some guidelines are clear.

If someone can’t prove something either true or false, then it’s an opinion. My meal was too cold is an opinion. He broke my rear molar is not. A Wal-Mart was called “trashy.” The court said “trashy” could be interpreted many ways. So the person who said it was safe. Another person stated that a painter had “f***** up the paint job.” No precise meaning there, so it was safe. People were called the “biggest crooks on the planet,” others “boobs, losers and crooks”; the courts said these statements were the kind of extreme speech or juvenile name-calling that readers understand as “exaggerated rhetoric,” roughly speaking, hot-air. Readers wouldn’t believe the speakers really meant the literal words and they couldn’t be proved true or false. (How do you prove someone is a boob or a loser or the biggest crook on the planet?) Those posters were safe. But in California, a Yelp review that accused the poster’s landlord of “abhorrent behavior that (likely) contributed to the death of three tenants” was not OK because they were “facts.” A court said that just because it’s on the Internet, people don’t assume it’s just loose talk or raving. Courts can “… dispense quickly with defamation claims arising from true rants and raves, [but] they do not preclude the courts from taking serious Internet speech seriously.”

Tacking on “IMHO” (in my humble opinion) or a similar phrase won’t protect you. If Susan says, “In my opinion John Jones is a liar,” the reader believes she knows facts proving Jones lied. If she doesn’t also tell the reader those facts, what she said is considered a fact, even if she said it was only her opinion. Sooner or later, she must prove her statement was founded on evidence. Once she does that, they better be correct. If she says, “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,” she’s probably safe if he actually did accept those teachings.

Liles did not protect himself. Most of us don’t. The Internet makes it easy to spout off, so we just type whatever we’re feeling and get it off our chest. That’ll teach ’em!

And as for Dancing Deer Mountain? The appellate court two weeks ago decided that Neumann could go ahead with her case despite freedom of speech, because some things that Liles said were not opinion. Why? Although the court said that “some” of what Liles said was protected opinion, its only example was “The worst wedding experience of my life!” Yep, can’t be proved, so it’s an opinion.

I see other candidates: “there are … great places to get married, this is not that place”; “I was only happy with one thing”; and how in the world can words like “two faced” and “rude” be considered anything but opinion?

The court said Neumann could go forward on her claims based on the whole post including, these statements: “[t]he owners did not make the rules clear”; “when they saw something they didn’t like they waited until the day of the wedding to bring it up”; “[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately”; and “[t]he ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same”).

“When Does a Bad Review of a Wedding Business Constitute Defamation? Online Reviews of Wedding Vendors: Defamation or Free Speech?”

Robert Schenck, WEDDING INDUSTRY LAW

“Tinnnnnnnnnnnnnnnnnnn roof. Rusted. Get it? It’s a LOVE shack.”

[[ There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guest. I was only happy with one thing. It was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The “bridal suite” was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why to keep your $500 deposit, and will try to make you pay even more. ]]

Dancing Deer Mountain has 11 Google reviews. Nine of the reviews rate the respected Oregon wedding venue 5 stars. Two of them, including the one above, rated the venue 1 star. Carol Neumann, the owner, said business plummeted following the review by Christopher Liles, who had attended a wedding at Dancing Deer Mountain in 2011. Neumann responded by suing Liles for defamation, requesting $7,500 in damages. The trial court dismissed the case.

Defamation Defense: Anti-SLAPP

Oregon has an anti-SLAPP (Strategic Lawsuits Against Public Participation) law designed to protect speech in a public forum, including websites like Yelp, Angie’s List, and Trip Advisor. Lawmakers intended for the statute prevent corporations with deep pockets from filing meritless lawsuits to chill public discussion. In addition to Oregon, 27 other states, Washington D.C. and Guam have an anti-SLAPP law with California’s statute being the oldest. Unfortunately, differences between the statutes, as well as what kind of speech each statute actually protects, has caused a great deal of confusion for the courts. And while the anti-SLAPP laws protect individuals against lawsuits by massive corporations, they can also prevent small businesses from protecting themselves against malicious, anonymous internet posters.

The Oregon law allows the court to dismiss a defamation claim in the early stages of litigation if an oral or written statement was made in a place open to the public and in connection with an issue of public interest OR if it was a constitutional exercise of free speech in connection with a public issue. The trial court held that Liles was exercising a constitutional free speech right. In April 2013, the Oregon Court of Appeals overturned the trial court and said the lawsuit should continue because Neumann demonstrated that the lawsuit wasn’t meritless.

How Is the Wedding Professional’s Claim Presented?

To win a defamation claim, a plaintiff must show the publication of an untrue statement that tends to lower the reputation of the subject in the community (read more about Wedding Vendor Defamation here). Here, Neumann will have to show that Liles’s statements – “the ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same” – is false. Because it was an internet post, it was published by Liles for anyone to view. And Neumann will have to demonstrate she lost business because of the damage to her reputation.

Further, statements of opinion can’t be defamatory, but the opinion can’t imply facts. For instance, whether a student athlete regarded hockey as a priority is pure opinion. But, where a TSA agent reported that a man needed to be removed from a plane due to his mental status implied a fact that could be proven.

Liles argued that his Google review was hyperbole and opinion. The Court of Appeals said that a jury could think differently about much of his post. Statements like, “the owners did not make the rules clear,” and “we were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately,” could be facts that seriously damage Neumann’s reputation.